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Coalition challenges NYC size limits on sugar-sweetened beverages

A coalition of industry and union interests has filed a petition seeking to enjoin or invalidate the New York City (NYC) Department of Health prohibition on the sale of certain sugar-sweetened beverages in servings exceeding 16 ounces from certain types of business establishments. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., N.Y. Cnty., filed October 12, 2012). The coalition contends that the Board of Health acted beyond its powers in adopting the prohibition and that it is arbitrary and capricious in its design and application.

Members of the coalition include trade associations for Korean-American grocers, restaurants, beverage makers, and theater owners, as well as the Hispanic Chamber of Commerce and a soft drink and brewery workers union local. According to the petition, the rule does not apply to beverages higher in calories than soft drinks, including alcohol-based drinks, wines, high-calorie coffee drinks, milkshakes, fruit smoothies, and 100-percent fruit juices. Nor does it apply to every type of vendor; it apparently “applies to restaurants, delis, fast-food franchises, movie theaters, stadiums and street carts, but not to grocery stores, convenience stores, 7-Elevens, corner markets, gas stations and other similar businesses—literally thousands of stores—that sell the same beverage products.”

The prohibition also apparently allows “unlimited free refills, and allows customers to add as much sugar as they want to any beverage after it is purchased.” As to such “loopholes,” the petition states, “When these loopholes are contrasted with the provision in the Ban that forbids establishments with self-serve fountains from offering cups larger than 16 ounces even when used for diet sodas, zero-calorie beverages, and water, it is not possible to say DOH is doing anything but making political, economic, and pure policy judgments unrelated to any technical or scientific expertise.”

Contending that the rule exceeds the health department’s authority, the petitioners note that legislative bodies, such as City Council and the state legislature, have refused on multiple occasions to adopt similar laws that would target sweetened beverages. They claim that the prohibition is “fundamentally beyond the role of the executive branch of City government to unilaterally devise and implement social policy.” The petition cites an appellate court ruling striking down a public smoking ban adopted by the State Public Health Council for the same reason and argues that the soda prohibition is indistinguishable from the smoking ban.

The harms cited in the petition include lost business, wasteful costs to repackage beverages sold in bottles exceeding the limit, lost jobs, and higher theater ticket prices to make up for lost concession sales. The petitioners report that thousands of concerned individuals and business owners opposed the proposal, which was adopted “essentially just as the Mayor proposed, without making a single substantive change to address the comments submitted in response to the proposal.” They refer to Brian Wansink’s study concluding that the prohibition will not succeed.

The petitioners ask the court to enjoin the rule’s implementation or declare that the New York City Charter provisions on which the department based its authority to adopt the prohibition violate the separation-of-powers doctrine by the breadth of their delegation of authority. They also support their request for injunction on the ground of substantive invalidity, claiming that the prohibition is “riddled with arbitrary exclusions, exemptions, and classifications that are unrelated to the stated purpose of the rue.” They allege that the board had no coherent justification for selecting 16-ounce containers as the standard for regulation.

They request that the court act on their petition by December 15, 2012, “so that affected businesses can avoid expending funds to comply with a law that Plaintiffs believe should be struck down.” Set to take effect March 12, 2013, the rule, if upheld, would purportedly require three months for beverage makers to retool their facilities and equipment.

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